This week, the Court of Appeal are hearing what is being referred to as a “Landmark case” in respect of how domestic abuse cases are being handled by Judges within the family courts.
According to, “Domestic abuse and private law children cases: A literature review” by Adrienne Barnett (Brunel University London) for the Ministry of Justice Analytical Series 2020, findings and estimates from predominantly quantitative studies based in England and Wales indicate that the prevalence of domestic abuse in private law children cases is considerably higher than in the general population, with allegations of findings of domestic abuse in samples of child arrangements/contact cases ranging from 49% to 62%.” These shocking figures must raise alarm bells to family lawyers as to the significance of the allegations made within private children proceedings, and that such allegations should not be swept under the rug.
This week’s headlining Court of Appeal case consists of four conjoined appeals concerning marital rape, partner rape and coercive control; all which occurred within private children proceedings, particularly where contact was concerned.
The appeals have been brought by mothers who have made severe allegations against the fathers of their respective children, and wishing to challenge the rulings of circuit judges made within the last 18 months. Two of which relate to decisions made by Judge Robin Tolson, who found in one case that there was no rape because the mother did not take “physical steps” to stop the accused. In the other case, Judge Tolson ruled the mother’s allegations of rape were ‘deeply unconvincing’ because she had intercourse with the Father on other occasions.
These rulings are based on archaic attitudes and as such have been criticised by Barrister Christopher Hames QC, who is representing the mother in the former case, ands stated in his written outline to Sir Andrew McFarlane, Lady King and Lord Holroyde, “In this appeal, as in other cases, the real question is not limited to what happened, but whether those events were abusive themselves, and/or whether there is sufficient evidence of patterns of behaviour which is demonstrative of an abusive relationship… It should not be taken that just because a woman has consented to sex in the past that she should be taken as consenting every time...I would have hoped that is an assumption long assigned to the judicial dustbin.”
Hames QC highlighted Tolson’s decision that the incidents raised (by the Mothers) in these cases were “insignificant themselves” and dismissed the fact that some victims do not always consider themselves as victims, which may be one of the reasons they do not report the abuse to the Police. Barrister Amanda QC representing the mother in the latter case, also argued, “The Judge (Tolson) was wrong to find the mother’s case weak because she did not confirm to his stereotype of the ideal victim as she delayed in reporting allegations.’
As this case continues to be heard, it is likely that it with reveal more discrepancies as to how the judiciary perceive and handle these allegations of domestic abuse in private children cases, which should provide guidance to family lawyers in the future.